Dustin Higgs’ execution was the thirteenth of the US presidency just ended. Trump leaves with the record of death sentences carried out in the last century, having reintroduced them in July after a 17-year hiatus.
Following an implicit rule, the execution of the death penalty has always been suspended during the transition from one presidency to another, but again Trump’s era will be remembered for its excesses.
Biden has already said that he wants to eliminate the death penalty at the federal level and that he will convince the states to do the same. However, some readers might remember that in 1994 the new president helped writing the Crime Bill as Senator of Delaware and member of the Judiciary Committee. This controversial bill added sixty crimes to the list of those punishable with lethal injection.
It is worth asking whether the people of the “Greatest democracy in the world“, support this procedure or not.
Statistics tell us that two thirds of Americans are in favour of execution for the most serious crimes (1).
If we filter these data with other ethnic-religious parameters, we find out that the average citizen who endorsed death penalty is generally white, Catholic or Protestant, and conservative.
Let’s now take a step back in time.
It is November 2000, in the American elections Bush wins against Gore. In northeastern Italy, in the city of Trieste, the philosopher Jacques Derrida holds a seminar entitled “Time and Death penalty” (2) in which he also refers to the political situation in the United States noting that both candidates are in favour of capital punishment.
Thanks to his reflection we can interfere that it is not true that those who are conservative or right-wing are more inclined to support the death penalty: the issue goes beyond political differences and directly questions sovereignty.
I would like to start from this which is one of the results of Derrida’s speech to analyse the current position of the souverainiste politicians (a term the philosopher does not use) on the issue and then read his words again.
In Asia, China is the country with the most death sentences executed in the world. In the Philippines, Duterte has repeatedly insisted on the reintroduction of the death penalty, especially with the aim of punishing drug crimes often “solved” with extra-judicial executions.
In Europe, Belarus is the only state that still practises executions, but there are certainly some favourable positions within the EU.
After the 2015 terrorist attacks, Orban wanted to reopen the debate on death penalty and Marine Le Pen, the leader of Front National, said that this was a “necessary tool in a country’s legal arsenal” and that she would propose a referendum to restore it.
In Italy, although no political leader has proposed death penalty, according to the latest Censis report of 2020, 43.7% of elder Italians would be in favour of such a punishment. The percentage goes to 44.7% among young people.
The situation is complex, but there seems to exist correspondence between souverainism and death penalty. This link, however, requires some further clarification.
First of all, the term ‘sovereignty’ must be explained: here it does not simplistically refer to right-wing souverainism but it indicates a priority of sovereignty over matters of internal and international law. In other words, souverainiste politicians are not only against the widespread power of supranational organizations, but they also re-examine the role of the state as guarantor and executor of “law and order,” as Trump says.
Sovereignty, historically has always indicated the right of life and death of the king and then of the State over the subject or the citizen. “And wherever this concept of sovereignty works, it is not possible to question death penalty” says Derrida in the conference.
Political power can still be exercised over life and bodies: sovranist politicians know it very well, as they often practice a form of somatic politics, where leader’s body literally covers itself with symbolic values (Trump tearing the mask off, Salvini’s sweatshirts) and the body of the other can identify its belonging (the “Germanic whites” of the assault on Capitol Hill), diversity (migrants) and can be punished (chemical castration proposed by Salvini).
The United States are essentially a sovranist country.
Someone might note that we are talking about a democracy in which the sovereignty belongs to the people. However, a clarification should be made here: in the United States sovereignty does not belong to the people, it belongs to public opinion (3), is not of all, but of the majority, an entity more shaped by ideology.
In order to eliminate the death penalty Derrida says that the concept of sovereignty in the United States needs to be changed. The operation is extremely difficult and he says that philosophy has not been able (and perhaps never will be) to influence politics on this topic. The philosopher adds that the roots of this idea of power are religious, related to Christianity: the power of the sovereign derives from God. According to Derrida, this theological foundation of government appears through the president’s oath on the Bible or his blessing the country in official speeches.
“Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated. Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example. These individuals should instead serve life sentences without probation or parole”.
Referring to these words, Derrida’s reflection is still topical: in addition to the question of sovereignty, he raises the question of cruelty and the principle of the death penalty.
In 1972, when the Supreme Court ruled that its application was in contrast with the Constitution, which states that citizens cannot be subjected to “unusual and cruel punishment”, in fact, it did not condemn its principle, but rather its application.
The problem lies in that adjective – cruel – so much that the suspension of executions lasted until 1977, when some states objected that the application of the death penalty through lethal injection was not cruel.
But where is the cruelty? Perhaps “cruel” in this case is also synonymous with “incorrect”: “potentially not accurate”.
This is one of the reasons still used today by those who oppose the death penalty: if it is true that the injection is “correct” because it cannot fail in killing, the judgement might be wrong and cruel.
No one criticises the principle of penalty, that there is a right to kill and the citizen is killable. Nor Biden does.
The question of cruelty is also intimately linked to that of visibility: in some ways, it is implicit that if a death is less visible it is also less cruel. In this regard Derrida recalls to the minds of listeners the path that Michel Foucault presents in his Discipline and Punish from a visible and public torture to a regular de-spectacularization of the penalty. Derrida, however, points out that the spectacle of death is still there, it has only changed shape: it no longer bleeds the squares but it is transmitted through the media, it appeals to an atavistic, morbid interest in knowing about the death of others.
These considerations suggest that the death penalty does not only concern the law and the body, but it is also about the psychology of politics itself and of the masses.
Even if Biden succeeded in eliminating (not just suspending) executions, the very thought of the possibility of the death penalty would not be touched. This is where the descent stops: it began with the deconstruction of “souverainisme” and then came to the concept of sovereignty and, in the end, to the unconscious of politics. Derrida concludes:
“It is, of course, trying to start with Nietzschian, Freudian-type issues, about revenge, chastisement, unconscious, cruelty – Nietzsche and Freud make a whole speech about cruelty – of the death drive, and trying to articulate this discourse with the official legal, politico-legal discourse, that one can gradually try to change things”.
(1) Linley Sanders, “How America feels about the death penalty today”, YouGov, 13 luglio 2020
(2) Jacques Derrida, “Time and Death penalty”, EUT Edizioni Università di Trieste, 2001, translated by Raoul Kirchmayr
(3) “Without the assumption of public opinion as the origin of every authority for decisions that bind the entire social body, modern democracy lacks the substance of its truth” (J. Habermas, Storia e critica dell’opinione pubblica”, Laterza 2008, p. 274)